Opinion
48205.
ARGUED MAY 4, 1973.
DECIDED JUNE 15, 1973. REHEARING DENIED JULY 6, 1973.
Sales tax. Fulton Superior Court. Before Judge Williams.
Walter H. Wingfield, Carey P. DeDeyn, for appellant.
Arthur K. Bolton, Attorney General, Richard L. Chambers, Timothy J. Sweeney, Assistant Attorneys General, for appellee.
The purchases of the telephone directories by the non-resident taxpayer from non-resident printers were retail purchases, and the transfers of the directories to their ultimate consumers — telephone companies and/or their subscribers within this State — were taxable uses under the Retailers' and Consumers' Sales and Use Tax Act.
ARGUED MAY 4, 1973 — DECIDED JUNE 15, 1973 — REHEARING DENIED JULY 6, 1973 — CERT. APPLIED FOR.
The issue raised by this taxpayer's appeal from the affirmance of an assessment by the State Revenue Commissioner, is whether purchases for the purpose of resale, within the meaning of the Retailers' and Consumers' Sales and Use Tax Act (Ga. L. 1951, p. 360, as amended; Code Ann. Ch. 92-34A), occurred when the non-resident taxpayer purchased telephone directories from non-resident printers for delivery by the printers within this state pursuant to the taxpayer's contracts with certain telephone companies in Georgia.
The taxpayer, Berry is engaged in the business of procuring by solicitation, advertising for the classified sections of telephone directories of telephone companies. Its contracts with the telephone companies are of two types. Under the "publication contract," Berry had the exclusive right and obligation to print and publish the directories and pay all bills therefor, making no separate charge for the printing. Under the "commission contract," no express provision governed Berry's duties with respect to the printing of the directories. The evidence was conflicting as to whether Berry considered itself impliedly bound under all commission contracts to obtain directories or whether this was a matter to be negotiated in each transaction. In any event, Berry re-invoiced all or part of its printing costs to the telephone companies under the commission contracts, but absorbed the entire cost under some of the other contracts. In no instance did the printer bill a telephone company for the sales price of the directories.
In procuring the production of the directories, Berry dealt exclusively and directly with the printers under a master contract, specific provision of which referred to Berry as the purchaser, and provided when title passed to Berry, when Berry was to be billed, and when Berry was to make payment. There was no reference to Berry as the agent or broker of any other party in its contracts with the printers, or in the purchase orders or invoices for the printing. The directories were shipped by the printers on Berry's instructions either directly to the subscribers of the telephone company or to the company, which then redistributed them to its subscribers. The telephone companies' use of the directories is governed by tariffs filed with and approved by the Georgia Public Service Commission and introduced in evidence.
1. The trial court correctly determined that the taxpayer did not act as the broker of the telephone companies in purchasing the directories. A broker's contracts are always made as agent for and in the name of his employer. American Sugar Refining Co. v. McGhee, 96 Ga. 27, 38 ( 21 S.E. 383); Payne v. Ponder, 139 Ga. 283, 286 ( 77 S.E. 32). The purchaser is "the person who orders and pays for [goods] when the sale is for cash or who is legally obligated to pay for them if the sale is on credit." Alabama v. King Boozer, 314 U.S. 1, 10 ( 62 SC 43, 86 LE 3, 140 ALR 615). See also State of Ga. v. Coca-Cola Bottling Co., 93 Ga. App. 609 ( 92 S.E.2d 548), rev. 212 Ga. 630 ( 94 S.E.2d 708). The present taxpayer's contract was made in its own name, and the evidence hereinabove set out authorizes the finding that the taxpayer failed to carry its burden of showing the existence of any agency relationship either by express contract or otherwise. See Blackmon v. Ross, 123 Ga. App. 89 ( 179 S.E.2d 548).
2. A purchase of tangible personal property to be transferred to another in the course of providing a service, is a taxable retail transaction, even though the actual consumption of the item is made by the recipient of the service or by the recipient's customer, and even though the transfer incident to the service transaction is not a taxable sale under § 92-3403a C (2) (a) (Ga. L. 1951, pp. 360, 363, as amended). Craig-Tourial Leather Co. v. Reynolds, 87 Ga. App. 360 ( 73 S.E.2d 749); J. W. Meadors Co. v. State of Ga., 89 Ga. App. 583 ( 80 S.E.2d 86); Troup Roofing Co. v. Dealers Supply Co., 91 Ga. App. 880 (5) ( 87 S.E.2d 14); Superior Type, Inc. v. Williams, 98 Ga. App. 89 ( 105 S.E.2d 14); Macon Machine Shop v. Hawes, 118 Ga. App. 280, 283 ( 163 S.E.2d 440); Atlanta Americana Motor Hotel Corp. v. Undercofler, 222 Ga. 295 ( 149 S.E.2d 691).
3. The taxpayer is not relieved of liability by the fact that its purchases of the directories were made outside of this state. See Code Ann. § 92-3448a (Ga. L. 1955, p. 389); Code Ann. § 92-3402a (b) (Ga. L. 1951, pp. 360, 362, as amended); Code Ann. § 92-3403a (I) (Ga. L. 1951, pp. 360, 363, as amended); J. W. Meadors Co. v. State of Ga., 89 Ga. App. 583, supra; Hawes v. Ingalls Iron Works Co., 117 Ga. App. 80 ( 159 S.E.2d 434). Under the above authorities, the taxpayer here is considered the "consumer". Nor is this result changed by the fact that the directories were shipped by the printers directly to the ultimate consumers, rather than by the taxpayer, since this delivery was done by the printer at the instance of and for the taxpayer in order for the latter to fulfill its contractual obligations or agreements to the telephone companies to deliver them within this state, which obligations or agreements were not necessarily contained in written provisions of the contracts. See Code Ann. § 109A-1-201 (3) (Ga. L. 1962, pp. 156, 161, as amended); Code Ann. § 109A-1-206 (Ga. L. 1962, pp. 156, 169); Code Ann. § 109A-2-201 (Ga. L. 1962, pp. 156, 176).
Judgment affirmed. Eberhardt, P. J., and Pannell, J., concur.